The Problem Of Defilement In Botswana

Lesego Nswahu Nchunga | Monday August 31, 2020 13:28

The haver of the sex, in this instance, is of course the adult. This begs the question whether “sex” can be had with a child? The reason for this question is that for sex to be had, consent must, as a rule, be obtained, from both parties engaging in the act of sex. The question of a minor consenting to sexual intercourse is a complex one which has been debated for many years, especially with considerations of the principle of evolving capacities which proposes that various factors impact the ways in which, and the ability of a child to have sex. It assumes that although a child is, in many instances a minor, a two-year-old minor, has a different mental faculty and capacity to made decisions, good, bad, or just life decisions, from a 16-year-old. Evolving capacities look at children, individually, taking into consideration their capacities, their resources and livelihoods and their environment which advises the ways in which they make decisions and what those decisions are.

That said, it provides that to not consider all this, is to deny children the full enjoyment of their rights. It also suggests that for the full enjoyment of their rights, there is a positive obligation to ensure that children are not only protected, but that whoever breaches their protections, is taken to task.

Defilement is one such crime which communicates the extent to which the law will go, to protect the children, and to preserve their right to sexuality, and sexual autonomy.

The crime of defilement is rooted in a power dynamic. Power, in my opinion, is quite an interesting phenomenon, which we seldom engage with when addressing crimes of a sexual nature, or crimes in which sex is taken advantage of, abused and used for harm and hurt, like rape. Defilement can therefore only be understood as a violence of misusing power and authority by taking advantage of one without similar power and authority, to harm them through sex.

Power is an individual person’s capacity to influence others. It often points to corruption and malevolent facets of power. In the context of the ways individuals relate with each other, there is a social exchange perspective of power which is a function of the relative dependency of each partner on the other, for resources being exchanged in the relationship.

But can a child be involved in any sort of relationship with an adult of a significantly wide age difference? Defilement answers with a big fat NO.!!! It is as simple as that: for a child’s own good, they cannot be in a relationship with an adult, because the power dynamic which exists there, will always pervasively favour the adult in the relationship, or at least the adult in the relationship will always unfairly benefit from the supposed relationship, or whatever engagement that will be, and often at the expense of the child.

Enter the Majaga saga. Member of Parliament (MP) for Nata-Gweta Polson Majaga has again, found himself on the other side of the law, where a child is concerned.

Not for the first time, there stands an allegation against the MP for defilement. This time, the defilement is said to have resulted in a pregnancy, and of  course, it has also resulted in Majaga making it about his political career, by blaming the charge and accusation on political wars, as reported by various local publications.

Because he took it there, we must engage with it at that level: the level of power at the level of local or national leadership, its various abuses, and significantly the impact of such on a minor child, and the pompous ways in which politicians wield power, unchecked by their peers because of archaic legal principles, which have absolutely no place in a child’s life.

Political power is often the most pervasive power, and in our country, it is the most abused. It is the power we should least trust. In fact, because of how many politicians in our jurisdiction have been accused of abusing their power, it makes it difficult, when there is an accusation, for any intelligible person to assume against it.

So when the accusation against Majaga was made, the question we all should have asked ourselves, because it was not a first time, would have been why was he still in leadership? The answer may be found in the statistics of defilement in the Nata-Gweta area, as well as in the rest of the country. Defilement seems to have become a norm, with the anomaly being the reprimand against it. So one wonders, does an accused defiler – really a repeatedly accused defiler – remain in power because they are, themselves, leading a population which understands his plight because they themselves are defilers? This of course does not make it right.

It rather illustrates the extent of the problem and the extent to which change and reform are needed at absolutely all levels of society.

Secondly, we must also consider the ways in which, in denying the defilement, Majaga tries to pin the charge on political wars. The danger in that is layered in the sense that not only is he said to have exercised his power as an adult, to defile a child, but he has the privilege to pin it on politics, suggesting, either that he yielded his second level of power, as a political leader to abuse this child and render her deeper into silence; or alternatively, acknowledging the ways in which children are the butt of political ploys. Either way, the child remains exposed to the insurmountable harm to her person and to her reputation as a person in the community.

Whatever the case is, we need to start thinking of justice for complainants in criminal matters, such as defilement and rape, beyond just the sentencing of the perpetrator or the fine that will be ordered against him. Justice should be holistic, and should, as a matter of urgency, strip power away from those who use it against others, unduly.